May 8, 2009

As you may recall, on Monday, Rosen quoted unnamed former clerks to make what the headline called "The Case Against Sotomayor." The "case" seemed to be mainly that she wasn't smart enough. Rosen got slammed. Finally, today, he responds:

I've just returned from London to find that my piece on Sonia Sotomayor has provoked an energetic response in the blogosphere.

Everyone knows there's no way you can check the internet in London, and anyway, why would you even think to look when, after all, you only just threw a huge stinkbomb?

Many people have mischaracterized my argument, and I can understand why. The headline--"The Case Against Sotomayor"--promised something much stronger than I intended to deliver...

Blame the headline writers. Yes, they do have a tendency to state bluntly the things you swathed in verbiage.

Readers have asked for more information about my sources....

Rosen assures us his sources are trustworthy and must remain anonymous.

I was satisfied that my sources's concerns were widely shared when I read Sotomayor's entry in the Almanac of the Federal Judiciary, which includes the rating of judges based on the collective opinions of the lawyers who work with them....

Yeah, the evaluations are bad — not on the point that she's not smart enough, but that she lacks "judicial temperament."

Some readers have also questioned my confession at the end of the piece that I hadn't read enough of her opinions to make a fully confident judgment.

Now, he's read some more opinions. He stands by his original opinion, which, he notes, accords with that Almanac of the Federal Judiciary.

Rosen concludes:

[I wanted] to encourage the White House to weigh considerations of temperament against the many other factors they'll be considering.

For the next Supreme Court seat, the president needs to be sure that the nominee's temperament and abilities are not merely impressive but absolutely stellar. She--and the next justice should indeed be a she--must be ready to challenge the conservatives and persuade her fellow liberals from the very beginning.

Must be a woman. (I agree.) Must be a woman who can interact well with the Justices already on the Court. Fine... boilerplate. But read as a whole, this new Rosen piece — put bluntly, in the manner of a headline writer — is saying that Sonia Sotomayor would be a terrible choice for the Supreme Court.

Why is it that everyone always acts like the Internet isn't a meaningful method of communication? It's like we're all just supposed to say "forget it, Jake, it's the Internet" and pretend like nothing anyone says here matters at all.

Ah for the original intent days when it "must" be someone would be a good judge. But I'm sure getting someone due to political reasons is just as good. Hope the ABA performs its due constitutional duty when it rates whoever is considered.

Rosen was looking for the best of the best of the best -- a liberal who can combine the best qualities of Brandeis and Warren. In this context everything is relevant. Rosen didn't suggest in any way that Sotomayor wasn't qualified to be a justice. I expect him to be giving the rest of the bunch the same scrutiny -- and because the top candidates are all women, he'll be getting more anti-women slams from folks like the XX Factor people at Slate.

But it will be interesting if he goes soft on one or two he thinks are the best choices -- my guess being Sullivan and Karlan. If he does would that give more or less force to his criticisms of Sotomayor?

IANAL, so I'll ask this. Are the complaints about Sotomayor -- tempermental, excitable, angry -- routinely made against male judges?

I would find it interesting -- not that it would necessarily mean anything -- to see how the comments break down on gender lines. Who perceives the judge as more excitable/angry/whatever: Men or Women lawyers?

IAAL, and I think MadMan poses a fascinating question. I wish Rosen would at least break down his sampling of anonymous clerks by gender. "Lacks judicial temperament" is often said of male judges, "temperamental" not so much, at least in my experience.

Anecdotally, I have argued a case before Judge Sotomayor, and I found that she was well prepared, her questions were incisive, and she plainly grasped both the abstract legal issues and the practical courtroom dynamics involved in the case. She was assertive, certainly, but not in any way that could fairly be cast as overbearing, disrespectful, or in breach of decorum.

Your head is so far up your ass when it comes to the significance of headlines that it is truly remarkable. You are constantly blaming writers for the headlines they don't write. What utter lameness. Check that, you only pull this lame stunt if you don't agree with the article.

But get's get to the bottom of this: the woman has poor evaluations, so obviously Rosen is right in one way. But you seem to think that it is important that her bad evaluations were about temperament not for lack of smarts.

Well, guess what? If you are smart enough, you manage to maintain a judicial temperament.

Since you have great difficulty managing your own temperament, though, I can see why this point would elude you.

Your head is so far up your ass when it comes to the significance of headlines that it is truly remarkable. ..

Apart from the bratty hyperbole of that sentence, you are also wrong.

It is true that the author doesn't write the headline, but blaming the headline-writer for failing to grasp the point the writer was trying to make is a)the oldest dodge in the game for journalists trying to weasel out of their own words, so it should always be taken with a grain of salt; and b) generally the fault of the writer for either being not clear enough or (as in Rosen's case) being clearer than he realized.

Glenn Greenwald, for all his faults, does not react to headlines. The Rosen piece was just as many have described it, an Establishment stab in the back. Perhaps it was justified, but we're still entitled to see it as a chickenshit way to go about it.

Are the complaints about Sotomayor -- tempermental, excitable, angry -- routinely made against male judges?I've seen the basic qualities attributed to male judges, just using a vocabulary more commonly applied to men: bully, quick-tempered, has a short fuse, domineering, tyranical, etc. They all point to more or less the same set of personality traits, none of which would be particially appealing in a supreme court justice.

While a trial judge, Sotomayor ruled in favor of the New York Time and other publishers who reproduced free-lancers articles in on-line directories. The 2d Circuit reversed her, saying the publishers violated the free-lancers copyright when they reprinted their articles.

ITA. I am a woman, and I hate that crap, too. It's bad enough to have identity politics running rampant in the other two branches of the federal government, why must it continue to infect the judiciary as well?

Professor, I'd love to hear you expand on your opinion that the nominee should be a woman.

An MBA prof in a class I attended a few years back was asked if there was a difference in the success rates of females/males in negotiation. She said studies show that the answer was *NO* for individual instances, but that there was a cumulative indirect difference.

Studies show people generally respond positively to someone who is in between pit bull and doormat on the sliding scale, but that women have a MUCH smaller sweetspot when it comes to likability. Men can be far more aggressive/passive and still be considered likable which impacts future negotiations in soft terms.

Women may do alright in a single negotiation but they will not be liked unless they hit that sweetspot, and that will impact them long term.

Just something I keep in mind when I read of "bad evaluations" from others. I am unfamiliar with her either way.

If women were already well represented in the judiciary, I'd say sex should not be a concern. But currently women are grotesquely underrepresented on the bench and its not because there aren't exceptionally well qualified candidates available. If we expect that appointed branch to have legitimacy, it should not have such an absurdly low number of women on it.

I wonder whether some of the negative stuff on Judge Sotomayor is disinformation put out by some Obama "advisors", or by others who want another nominee.

So far, the criticism of her record and demeanor is pretty nebulous stuff, as is most of the analysis of candidates on the "short list" for any SCOTUS appointment, irrespective of the President involved.

IMO, Harriet Miers was a victim of similar sniping. I don't think this type of BS tends to promote public support and respect of the SCOTUS nomination process. But it continues unabated.

But currently women are grotesquely underrepresented on the bench and its not because there aren't exceptionally well qualified candidates available.

This discussion is reminiscent of the argument which looks at the "underrepresentation" of women faculty in hard sciences and engineering at universities. It makes me nervous that Title IX-type quotas will soon be imposed in areas outside of sports.

I don't believe there is any significant institutional bias against women, or if there is, it won't last much longer since male college enrollments are dropping. People who talk about "underrepresentation" fail to recognize that women self-select their careers. Seriously: if qualified women candidates were being kept off the bench (Janice Rogers Brown, anyone?), that's the kind of story the media would front-page and keep running. We would have heard about it -- provided, of course, the judge was liberal.

I'm not saying a woman shouldn't be considered, of course, but I want the best person for the job, whatever the job is, not the best set of ovaries.

"women self-select their careers."But women do not self-select as Federal judges. The Supreme Court and the Federal bench are all Presidential appointments. If women are not being appointed (and its clear they are not), it is because the President(s) have not been appointing them, not because women have decided they don't want to be judges.

I'm not saying a woman shouldn't be considered, of course, but I want the best person for the job, whatever the job is, not the best set of ovaries.I just think its a fallacy to think there is a singular "best person for the job" in a situation like this. There are a number of well qualified candidates, each of whom would bring to the job a slightly different bag of skills, experience, personality, priorities, etc. This isn't a civil service job where you can give an exam that establishes who is the best. (Actually, I'm skeptical of how well a one-dimensional civil service style exam predicts the quality of one's performance in any job)

This discussion is reminiscent of the argument which looks at the "underrepresentation" of women faculty in hard sciences and engineering at universities.

But few women study physics or engineering. In contrast, for years law schools have been stuffing the pipeline with women JDs. Figuring it takes some 20 years for a JD to become a judge, based on the JD population of 1989, half the incoming judiciary should be female.

The usual deterrents to women's succeeding aren't present. Judges don't face 100 hour work weeks; they have far more control over their schedule than a private practice lawyer does. Being a judge is a secure government job. Governments often make cheap but good day care available to their employees. Etc.

I predict that President Obama will name someone else other than Sotomayor, and within minutes of the annoucement many conservative organizations and leaders will issue a press release attacking the nominee as a 'liberal extremist.'

How will they be able to do that so quickly? Easy. The press releases have already been written, all they will have to do is insert the name.

The substance of Jeffrey Rosen's concerns is shared by many familiar with Judge Sotomayer. She was not regarded as among the best of the district judges in the Southern District and her record on the 2d Circuit bench has been unremarkable. The nation is blessed with a wealth (perhaps an overabundance) of truly exceptional judges, scholars and lawyers, hundreds of whom possess a judicial temperament, intellect and independence are surely more reliable than that of Judge Sotomayer (and, for that matter, most of the other perceived "short-list" candidates). Those who believe gender and ethnicity should be the predominate considerations merely perpetuate the prejudices that they believe merit such affirmative action. Even if one wanted to put an ideological counterweight to Scalia, Thomas, et al, Sotomayer is far from the strongest pick to effectively shift the balance on the court beyond her own vote. The Souter slot could be very important by providing fresh leadership to the more progessive justices. Sotomayer would not accomplish that end.